CONSTITUTIONAL LAW: FEDERAL JURISDICTION AND RESHAPING INSTITUTIONS FEDERAL COURTS AND AUSTRALIAN NATIONAL IDENTITY T HE HON JUSTICE SUSAN KENNY* The history of Australian federal courts, from the creation of the Commonwealth Court of Conciliation and Arbitration in 1904 until now, is part of the broader history of how Australians have come to see themselves and their relationship to courts as institutions of an evolving Australian government. Although unremarked in current historical studies about Australian national identity, significant changes in the conception of the Australian court system occurred in parallel with fundamental shifts in the creation, formulation and discernment of national identity. This article considers the history of the Australian federal courts alongside the processes of the formation of Australian national identity, as explored by Curran and Ward. This approach reveals much about the strengths and weaknesses of the federal court system today. CONTENTS I Introduction .............................................................................................................. 997 II The Curran and Ward Analysis .............................................................................. 998 III The Courts at Federation ...................................................................................... 1000 IV Constitutional and Post-Constitutional Federal Arrangements for Courts . 1001 V Developing a Framework for Federal Jurisdiction after 1918 ......................... 1005 VI The Postwar Harbingers of Change ..................................................................... 1008 VII Emerging Nationalism and the Federal Courts ................................................. 1009 VIII Federal Courts as Integral to the Federal Polity ................................................ 1015 IX Three Tiers of Federal Justice ............................................................................... 1018 X Conclusion: Federal Courts and Federal Identity ............................................. 1020 * BA (Hons), LLB (Hons) (Melb), DPhil (Oxf); Justice of the Federal Court of Australia. The author acknowledges and thanks Hollie Kerwin for her invaluable assistance in the prepara- tion of this article. 996 2015] Federal Courts and Australian National Identity 997 I INTRODUCTION In an article published in the Law Quarterly Review in 1935, the Hon Owen Dixon, then a Justice of the High Court of Australia, wrote: But neither from the point of view of juristic principle nor from that of the practical and efficient administration of justice can the division of the Courts into state and federal be regarded as sound.1 In 1963, less than 30 years later, Mr E G Whitlam QC, then Deputy Leader of the Opposition, declared: Judges who are called on to interpret and apply statutes should be appointed by governments responsible to the parliaments which passed those statutes. On this basic principle alone one should agree … that federal laws should be ap- plied and interpreted by judges appointed by the federal government.2 It would be a mistake to conceive of the creation of the Federal Court of Australia as merely a pragmatic solution to rationalise the jurisdiction of the existing federal courts, although proponents commonly cited functional considerations in favour of its establishment. Instead, the history of this and the other federal Australian courts is part of a broader history of how Austral- ians have come to see themselves and their relationship to courts as institu- tions of an evolving Australian government. In other words, the history of Australian federal courts is part of the history of Australian national identity. Their twin development throughout the later 20th and 21st centuries reveals points of shared interaction and influence which deserve attention. In the post-Imperial age, societies, once expressly defined by their mem- bership of the British Empire, have undeniably created new and sometimes distinct identities. At the same time, fading imperialism has required reform, sometimes significant, of the structures and institutions of government inherited from and previously overseen by the Empire. Australian historians have debated when, where, why and how Australian national identity was created, formulated or discerned; and the debate continues.3 The fundamental 1 Justice Owen Dixon, ‘The Law and the Constitution’ (1935) 51 Law Quarterly Review 590, 606. 2 M H Byers and P B Toose, ‘The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)’ (1963) 36 Australian Law Journal 308, 327. The comments of Mr Whitlam are also recorded here. 3 See, for example, the contributions of Christopher Waters, James Curran, Marilyn Lake, Sharon Crozier-De Rosa, David Lowe and Frank Bongiorno in Symposium, ‘Nationalism and Transnationalism in Australian Historical Writing’ (2013) 10(3) History Australia 7. 998 Melbourne University Law Review [Vol 38:996 and parallel changes that have occurred in the conception of the Australian court system have, however, gone unremarked in current historical studies of Australian national identity. This omission should be redressed. This article examines the history of the creation of Australian federal courts in relation to Curran and Ward’s analysis of Australian national identity as an as yet unresolved response to the receding ties to the British Empire.4 It is not the purpose of the article to defend their analysis as an accurate description of Australian social, cultural and political life. Rather, the article seeks to explore the history of the federal courts alongside the broader, and sometimes hesitant, processes of national identity formation, which Curran and Ward detail. Ultimately this approach reveals the nature, strengths and weaknesses of the federal court system as it exists today. The article maintains that the Curran and Ward analysis is helpful insofar as it elucidates the nature and foundations of the relationship between the federal courts and the other branches of federal government. The article argues that, over the past 20 years, the federal courts have gained acceptance as an integral part of Australian federal government and that they now perform significantly different roles in the federal polity from those generally contemplated before the 1960s. Notwithstanding Mortensen’s view that arguments about nationhood and the federal polity to justify the creation of the Federal Court were and remain merely ‘cosmetic’ and fail to reflect reality,5 the article maintains that this acceptance of ‘federal courts’ as an important part of ‘federal government’ is an aspect of the Australian search for identity. Further, attention to the new roles of federal courts in the post- Imperial age discloses their more complex, nuanced relationships with the federal government and the Australian community. Navigating these relation- ships successfully requires a steady awareness of, and respect for, the different responsibilities of the three branches of government. II THE CURRAN AND WARD ANALYSIS In The Unknown Nation: Australia after Empire, Curran and Ward argue that the intensified interest in national identity evident amongst Australians from the early 1960s to the 1980s was ‘a response to the relatively sudden collapse 4 James Curran and Stuart Ward, The Unknown Nation: Australia after Empire (Melbourne University Press, 2010). 5 Reid Mortensen, ‘Autochthonous Essential: State Courts and a Cooperative National Scheme of Civil Jurisdiction’ (2003) 22 University of Tasmania Law Review 109, 143. 2015] Federal Courts and Australian National Identity 999 of Britishness’ as an accepted standard for civil allegiance.6 They com- ment that [f]rom the mid-1960s, with a dwindling material basis for imperial sentiment, Australians were confronted with the task of remaking their nation in the wake of empire. It was a problem that touched every aspect of Australian life where identifiably ‘British’ ideas, symbols, motifs, precepts and practices demanded remodelling.7 As they observe, in 1968, journalist Donald Horne introduced the expression ‘new nationalism’ to describe Prime Minister Gorton’s political style;8 and the term was rapidly adapted to signify what Serle referred to as a ‘surge of national consciousness and idealism’.9 At around the same time, Manning Clark announced that ‘the years of unleavened bread were over’.10 Curran and Ward contend, however, that ‘the underlying rationale of the new nationalism was neither as self-assured, coherent nor universally welcomed as is generally assumed’ and ‘this era of national renewal ultimately failed to produce a viable solution to the problem of post-imperial nation- hood’.11 In consequence, Australians continue to be uncertain about their national identity and to doubt national institutions.12 Having regard to these contentions, it is instructive, first, to consider the British Imperial nature of Australian courts prior to Federation and these courts’ reception of federal jurisdiction pursuant to the Constitution and the Judiciary Act 1903 (Cth) (‘Judiciary Act’). It is useful to consider the circum- stances that led to the establishment of a small number of federal courts, generally with subject-specific jurisdictions, before examining the arguments in the 1960s for the creation of a family court and, more particularly, a federal court of more expansive jurisdiction. What happened thereafter is significant in light of the Curran and Ward thesis that the search for Australian